Sunday, August 25, 2013

Just give me ONE CRORE, because you slogged, you are a doctor, you earn money and I am ablaa naari. Ablaa Naari wife of a doc seeks one crore alimony !!! Can HUSBANDs use this judgement to find out about wife's employment ???

Just give me ONE CRORE please, because you slogged, you doctor, earn money and I am ablaa naari. can HUSBANDs use this judgement to find out about wife's employment ??? Wife's interrogatories (or questions) on husband's monthly income, assets, properties etc etc are allowed by the court EVEN BEFORE her averments of creulty are proven !!! So can HUSBANDs use this judgement to find out about wife's employment ???

Notes

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* Marrined in 1991

* Couple have lived together for long

* have a kid out of wedlock

* still fights errupt, couple separated

* Now wife has filed for divorce on grounds of cruelty and seeks alimony of one crore only !!

This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

This O.P.(FC) is filed under Article 227 of the Constitution of India seeking to challenge Ext.P9 order passed by the Family Court dismissing Exts.P5 and P6, the interrogatories, sought to be served by the petitioner and the respondent.

2. Briefly stated, facts relevant for the purpose of this case are that the petitioner and the respondent are wife and husband, whose marriage was solemnised on 15.9.1991. Although they lived together for a considerably long period as husband and wife and a daughter by name Roohi Mariam Peter was born to them, the parties are now at loggerheads. As a result, the petitioner is residing at Ernakulam and the respondent is residing at Thiruvanathapurm, where he is working as a Cardiologist in a private hospital.

3. The petitioner-wife has filed O.P.No.935/2012 before the Family Court, Enrakulam seeking dissolution of marriage on the ground of cruelty and also for a decree for permanent alimony of Rupees one crore against the husband. A copy of the petition has been produced along with the counter affidavit of the respondent as Ext.R1. Insofar as it is relevant for the purpose of this case, the following averments are made in paragraph 48 of the petition substantiating her claim for permanent alimony. " The respondent is Specialist Doctor(Cardiologist) working with the KIMS Hospital, Trivandrum with an average annual salary of Rs.1 crore. In addition to the above the respondent is immensely rich and he has considerable bank deposits and investments in shares, real estate and gold. The petitioner and the minor child are entitled to enjoy the comforts in life commensurate with the income and status of the respondent and the respondent is liable and responsible to provide them with the amount which is sufficient to lead such a life. Hence the petitioner is praying for an order allowing her to realise an amount of Rs.1 Crore (Rs.1,00,00,000/-) from the respondent as Permanent Alimony."

4. To the petition filed by the wife, the respondent-husband filed Ext.P2 objection denying the allegations against him. Insofar as her claim for alimony contained in paragraph 48, he has stated thus:

"The respondent gets a monthly income of less than 1 lakh per month working with KIMS Hospital. The petitioner's demands are exorbitant that to without any basis. The petitioner is not entitled to get any alimony as prayed. She is enormously rich having both movable and immovable properties in her own name. The respondent is not having considerable bank deposit, investment shares, real estate and gold. The averments regarding the asset and income of the respondent are ballooned, astronomical and have no basis. In fact those averments are made only to mislead this Hon'ble court."

5. The matter is pending before the Family Court and in the meanwhile, the wife filed Ext.P5 interrogatories along with Ext.P6 I.A., seeking leave for delivering the interrogatories. The interrogatories that were sought to be answered are nine in number and are the following:

1. What is the exact gross and net income of the respondent from his profession including the salary he is given from the KIMS HOSPITAL, Thiruvananthapuram? Produce salary slip in proof of the above income.

2. How many Bank Accounts (Fixed Deposits, Current Deposit and Savings Accounts) are being operated and maintained by the respondent? Please give the number and other details of the bank accounts maintained by the respondent.

3. Give the details of investment in the name of the respondent in shares, debentures, bonds etc.

4. The details of landed and residential property owned by the respondent with details regarding the property such as Village, Survey Number, extent of property and building number, if any.

5. The details of apartments, flats, commercial buildings and space owned by the respondent with details thereof.

6. The bank lockers owned and operated by the respondent with the details regarding locker number, name and address of bank.

7. The investment made by the respondent and on his behalf in gold and other valuable securities.

8. Number of vehicles owned by the respondent with details such as registration number, make, approximate value of such vehicles.

9.The annual income of the respondent during the financial year 2011-12, i.e. as on 31.3.2012 and produce a copy of the income tax return filed by the respondent for the said period.

6. To Exts.P5 and P6, the respondent-husband filed Ext.P7 objection. In Ext.P7, he contended, inter alia, that Order XI Rule 1 CPC apply only to suits before the civil court and not to proceedings before the Family Court. He also contended that the interrogatories filed are not in Form 2 of Appendix 'C' to CPC and that what is sought is purely an abuse of the process and it is not confined to the facts which are relevant to the matters in question in the original petition and that interrogatories will not enable fair trial. The Family Court considered the matter and finally passed order dated 5.6.2013, a type written copy of which is produced as Ext.P9 (the accuracy of which is not disputed by the respondent).

7. In Ext.P9 order, the Family Court rejected the contention of the husband that Order XI Rules 1 and 2 are inapplicable to proceedings before the Family Court. However, on merits the Family Court rejected the prayer of the wife holding thus:

"At the same time, it must be noted that, the interrogatories pout forth are not at all relevant to decide the case in hand. It is well settled principle that the interrogatories should have relevance and related the subject matter of the suit/OP. Here the O.P.is for divorce and claim for alimony. It is admitted fact that both parties are financially well settled, and hailing from upper class in the society, as it is revealed out from the arguments advanced by both sides. And, the claim of petitioner, regarding alimony is limited to Rs.One crore. The question of permanent alimony as envisaged under Section 37 of the Indian Divorce Act to be determined on adducing evidence to the satisfaction of the Court, by proving that the opposite party is living in a high position by maintaining high decree standard of living in the society, then the petitioner is also entitled to live in the standard of living as it is maintaining by the husband, then will decide the quantum of amount to be granted by way of alimony. It is at the discretion of Court, but of course only on evaluating the material placed in the evidence."

8. Again the Family Court concluded the matter by stating thus:

"From the principles laid down in the above said citations, it is made clear that, the interrogatories must be related to the issue, i.e. for the purpose of maintaining his/her case. Here, as it is pointed out earlier, the paramount and prime issue is, to prove the grounds of cruelty, alleged to have been committed against the respondent. Revealing of the quantity of wealth possessed by him, or the Bank Accounts maintaining in the name of the respondent are not at all necessary to prove the subject matter of the case. If the Court granted alimony and then the respondent is failed to obey in complying the order of the Court, then the position may become different. At present, no such situation is arises, in this case, as also Rule 4 to Order XI envisages that, interrogatories shall be put forth in the prescribed form i.e. in Form No.2 in Appendix "C", as it is rightly pointed out by the learned counsel for respondent which is totally lacking in this case. Hence on that ground also the I.A.will not stand. In view of the aforesaid reasons, I am to hold that the petitioner has failed to establish her claim to get deliver the answers to the interrogatories, therefore, the I.A.is liable to be dismissed. I do so."

It is challenging this order of the Family Court and seeking to set aside the same and for consequential orders, this Original Petition is filed.

9. We heard the learned counsel for the petitioner and also the learned counsel for the respondent, who reiterated the contentions urged before the Family Court before us also. As already seen, one of the reasons stated by the Family Court is that the main issue in dispute before the Family Court is the prayer of the petitioner for divorce on ground of cruelty and that the question of permanent alimony as envisaged under Section 37 of the Indian Divorce Act is to be determined, on adducing evidence to the satisfaction of the court and that it is thereupon for the court to decide the quantum of the amount to be granted by way of alimony which is in the discretion of the court. It has also held that since the paramount and prime issue is the claim for divorce on ground of cruelty, revealing of the wealth possessed by the respondent is not at all necessary to prove the subject matter of the case. It has also held that if the court grants alimony and the respondent fails to pay the same, the position may be different. Further, the court also came to the conclusion that the application made by the wife does not satisfy the requirement of Form 2 of Appendix 'C' to CPC.

10. Having considered the rival submissions made at the Bar, we confess our inability to accept the reasoning of the Family court. As far as the non-compliance of Form 2 of Appendix 'C' to CPC is concerned, Order XI Rule 4 itself state that the form of interrogatories shall be in Form 2 of Appendix 'C' to CPC with such variations as circumstances may require. A reading of Exts.P5 and P6 show that there is substantial compliance of the provisions of Order X1 and Form 2 of Appendix C to CPC and in such a situation, we cannot approve the technical approach adopted by the Family Court in rejecting the application made by the petitioner.

11. Law in regard to serving of the interrogatories is settled in various decisions of this Court and the Apex Court. In Raj Narain v. Indira Gandhi (A.I.R. 1972 SC 1302) referring to Order XI, Rule 1 CPC, the Apex Court held thus: " Questions that may be relevant during cross- examination are not necessarily relevant as interrogatories. The only questions that are relevant as interrogatories are those relating to "any matters in question". The interrogatories served must have reasonably close connection with "matters in question". " In P. Balan v. Central Bank of India, Calicut[AIR 2000 Kerala 24], this Court has explained the legal position thus;

8. "The object and purpose of serving interrogatories is to enable a party to require information from his opponent for the purpose of maintaining his own case or for destroying the case of the adversary. The answering of the interrogatories might save expenses and shorten the litigation by enabling a party to obtain from the other side information as to material facts regarding the questions in dispute or issues raised or to obtain admission of facts which the plaintiff has to prove on any issue. Answering the interrogatories might often shorten the trial proceedings and save the time of the Court and parties besides saving expenses for summoning witnesses, documents and the like. As a general rule, therefore, interrogatories are to be allowed whenever the answer to them will serve either to help the party in proving his case or to destroying the case of the adversary. The power is not meant to be confined within narrow limits. It should be used liberally whenever it can shorten the litigation and serve the interest of justice. Nevertheless, the power is to be exercised with care and caution so that it is not abused by any party. Interrogatories have to be confined to the facts which are relevant to the matters in question in the suit. A plaint or written statement may not sufficiently disclose the nature of parties to the case and to make good the deficiency, either party can serve interrogatories in writing which, when answered, would enable the Court to decide the suit without probing into the questions elaborately in the light of oral and documentary evidence. The Courts have to approach the question in a broad perspective aimed at seeing whether the grant thereof will enable fair trial and would save the cost of litigation to the parties. Of course, the possible objections specifically mentioned in Rule 6 of Order XI, C.P.C. also have to be considered. The interrogatories have to bear a reasonable close connection with the matters in question. A party is entitled to administer interrogatories to his opponents to obtain admission from him with the object of facilitating proof of his case as also to save the costs which may otherwise be incurred in adducing evidence to prove the necessary facts."

Evidently, therefore legal position is clear that interrogatories are to be relating to "any matters in question", and shall be allowed whenever the answer to them will serve either to help the party in proving his case or to destroy the case of the adversary. It has also been held that the power should be used liberally whenever it can shorten the litigation.

12. Insofar as this case is concerned, the paragraph 48 of Ext.R1 petition filed before the Family Court contains averments regarding the wealth of the respondent, which according to the petitioner, justifies her claim for permanent alimony of Rupees one crore. This plea was answered by the respondent in Ext.P2 objection in an evasive manner by stating that the claims made by the petitioner in paragraph 48 of the petition are incorrect, ballooned and astronomical. It was in such circumstances, the petitioner made Exts.P5 and P6 interrogatories, which certainly are in relation to matters in question in the proceedings and would have helped her to establish her case and also to destroy the defence adopted by the respondent in paragraph 64 of Ext.P2 objection. In such a situation, we see no reason that the Family Court should have declined the prayer of the petitioner.

13. Further, we cannot also approve the reasoning of the Family Court that the main dispute between the parties is in relation to Divorce on ground of cruelty. A reading of the petition itself would show that along with the prayer for divorce, she is also seeking permanent alimony. Therefore, both the issues relevant and are to be answered together and in such a situation, the Family Court could not have held that the stage has not reached to enquire into the resources of the respondent.

14. On an overall consideration of Ext.P9 order, we are of the considered view that the order is untenable. We, therefore, set aside Ext.P9 and direct that Exts.P5 and P6 will stand allowed. The Family Court shall, on the production of a copy of this judgment, pass further necessary orders in the matter. The O.P.(FC) is disposed of as above.